Tag: Oregon Medical Board

This might be a bad idea–for the pharmacist

In recent years, a number of states, including Oregon, have “legalized” marijuana for medical purposes (and in fewer states, for recreational use). As reported in the Okeecheobee News, Florida voters recently approved legalization of medical marijuana and now Florida cities must decide whether to opt out. If the Okeechobee City Council decides to allow medical marijuana dispensaries within city limits, one local pharmacist urges that he be considered to run the dispensary, but that might be a bad idea–for the pharmacist.

Florida pharmacist Steve Nelson acknowledges that “medicinal marijuana is not an easy issue,” but he is sympathetic, and he has seen the benefits of medical marijuana in treating seizures, terminal cancer, and chronic arthritis. I don’t doubt him. Mr. Nelson is also quite experienced (40 years as a pharmacist) and appears cautious, urging the city council to be careful, to ensure adequate controls are in place. One difficulty, according to the Okeecheobee News, is that the city would have “little power” to regulate medical marijuana because “regulation falls to [the] new state law.” It is not that simple, however.

Marijuana: a Schedule I banned substance under federal law

Despite Florida’s new state law, marijuana is still a Schedule I banned substance under the Controlled Substances Act (CSA), meaning that without a research permit or exception, marijuana cannot be possessed, prescribed, or dispensed for any purpose under federal law, and therein lies the rub. Over the course of his 40 years experience, Mr. Nelson has practiced pharmacy with a state license as authorized in great part by a federal Registration administered by the DEA. Now he wants to dispense marijuana contrary to the CSA’s drug schedules and DEA oversight?

Admittedly, for a number of reasons, federal law banning marijuana has been lightly enforced and, in those states where marijuana is “legal,” a lax attitude also prevails among the general public. However, for those of us that possess a professional license, and especially healthcare providers also possessing a DEA Registration, we are held to higher standards. In my experience, when there is a Board investigation, marijuana, medical or otherwise, is a complicating factor. I know this to be true for Oregon physicians, whether recommending marijuana for medical use, or consuming marijuana recreationally, and I fear my experience will prove true for Mr. Nelson should he choose to run a dispensary. Yes, I know, Mr. Nelson’s state license and federal DEA Registration are not necessary to run a dispensary under Florida’s new law. Still, Mr. Nelson is a state-licensed pharmacist, with two pharmacies dispensing controlled drugs as authorized by the CSA pursuant to separate DEA Registrations – does Mr. Nelson really want to run a third operation dispensing a Schedule I substance banned under the CSA? As a lawyer, I recognize the legal distinctions and I can make the arguments to support Mr. Nelson’s goal of running a dispensary but, as a practical matter, I see the risks of unwanted scrutiny, and more. Much more. I earlier commented on physicians, marijuana, the new DEA, and the Oregon Medical Board and marijuana, the practice of medicine, and the Oregon Medical Board, cautioning Oregon physicians physicians not to become complacent when involved with marijuana. I have also defended pharmacists and physicians for dispensing lawful drugs. Given my experience, I cannot imagine recommending that a state-licensed, DEA-registered practitioner dispense a Schedule I banned substance, even if its “only” marijuana.

For most people, that’s enough

Earlier this year, I needed to help a licensed health care professional obtain more treatment, so I spoke with his drug counselor, who was surprised at my inquiry. From the drug counselor’s standpoint, my client had completed the requirements of his court-sanctioned diversion program with perfect attendance, consistently clean urine tests, and no withdrawal symptoms – so, what more was there to do? For most people, that’s enough, and perhaps rightfully so. But, if you’re a licensed healthcare professional, you will often be subjected to more scrutiny and more will be expected of you.

More is expected of a licensed healthcare professional

If you are licensed by the Oregon State Board of Nursing, the Oregon Board of Pharmacy, or the Oregon Medical Board, your licensing board will want to know whether your substance abuse incident (often involving a police report, arrest and conviction, or a drunk driving arrest and conviction) is an isolated incident, or part of larger problem. If part of a larger problem, even if your practice hasn’t been affected, your licensing board may want to intervene, to gather more information, to ensure there are no public safety concerns. If this happens to you, you need to be prepared, and this is no time to learn on the fly.

Experience gained – the truth about honesty

Two tough cases with “easy” resolutions

I have represented licensees facing allegations involving alcohol. Two stand out favorably for lessons learned. One had a significant alcohol history and the other a significant alcohol-related incident. Both, however, were fully forthcoming and painfully honest when interviewed by their licensing boards, and both fully embraced and responded to their treatment. Although both had significant issues with alcohol, the investigator, and eventually the licensing board, trusted them and their treatment. Both licensees were treated respectfully, and both licensing boards joined in the search for solutions tailored to the individual. Neither licensee lost much time from work, and revocation was never the issue, an optimum result for both licensees.

Three tough cases with “hard” resolutions

Two other cases stand out for lessons learned, but these were painful lessons for the licensee. One licensee had a significant drug history, the other a significant alcohol history, but both were in denial until one was caught by testing and the other threatened with revocation of his license. A third case stands out because the licensee had a minor alcohol history but, in the investigator’s mind, the licensee’s explanation of the incident in question was suspect. In all three cases, the investigator did not trust the situation, which is always problematic, because investigators have resources. In all three cases, the investigator pursued his or her suspicions until confirmed, at least in part. These are mistakes to be avoided.

Lessons learned:

If you know you have an alcohol or drug problem that can be verified and warrants treatment, the sooner you accept the truth of your situation and get in front of your treatment needs, the easier it will be to maintain your medical license and restore your health. Why wait to be caught?

If you have been caught, but you are forthcoming and honest about your drug or alcohol abuse, you will gain the trust of the investigator and eventually your licensing board, and your life will be easier. Treatment and return to practice will be the goal.

If you have denied a known drug or alcohol problem and your explanations are suspect, you will be pursued until caught (remember, investigators have resources). Once caught, a convincing and genuine 180 degree course-reversal will be necessary to save your medical license.

What to expect – the “balancing act”

That you may have a drug or alcohol problem alone, without more, is not enough to lose your license. If you are a nurse, pharmacist or physician licensed by the Oregon State Board of Nursing, the Oregon Board of Pharmacy, or the Oregon Medical Board, you own your license as much as you own your car; it is your personal property, and it cannot be taken without a specified process, aka due process. It is important to know, however, what you must concede to your licensing Board, and what you must do, to keep your license. If you do the right things, the power to keep your license shifts to you, but if you do the wrong things, the power to revoke your license shifts to the Board. An experienced lawyer can help you make decisions that will keep you in a defensible position.

Remarkably, even if you have received a “notice of revocation” of your license, it may not be too late. I can think of two cases in which I was retained after a notice of revocation had issued but we were able to turn both cases around by quickly doing the right things in a genuine way (sometimes the notice of revocation is the final wake-up call). In a third case, however, I was not able to help – the problem was inexcusable dishonesty and the board did not see any way to fix that kind of problem.

One final thought: be forthcoming with your lawyer too

I am not gullible, but I can be mislead and, unlike your investigator, I will not fact-check you except in the rare case. As I write this, I can think of three licensees that misled me and their licensing boards, until they were caught. I believed all three. In two of the cases, the licensee denied a drug or alcohol problem and denial was recognized as part of the disease. I understand that dynamic and your licensing board will too. There will be some sympathy, so long as no further mistakes are made. In the third case, however, no such luck. I was present with the licensee when, during a tape-recorded board interview, the licensee was confronted with evidence that disproved the licensee’s prior answers. It was a painful moment for me, and certainly for my client, and there was no disease to blame, just dishonesty. Ouch.

The bottom line is that if you are honest, your licensing board will do much to work with you, but if your board thinks you can’t be trusted, you’ve made your situation much worse. Finally, if saving your license is your most important objective, be honest with your lawyer too. Your lawyer can help you to make the right decisions, present difficult problems in the best light, accept responsibility where you must, and defend the rest.

Oregon Medical Board investigations and narcotic prescribing

It is my recent experience that medical board investigations, no matter what the substance of the initial complaint, a physician’s prescribing practices will be scrutinized if there is any opportunity to do so. And why not? From the Oregon Medical Board’s perspective, there is a national opioid problem, and part of that problem resides in Oregon. As recently as July 6, 2017, this was the “good news” in Oregon:

“Anne Schuchat, the CDC’s acting director, expressed tempered optimism about the first national decline in opioid prescriptions that the CDC has reported since the crisis began in the late 1990s.

“She said the prescription rate is still triple the level it was in 1999 and four times as much as it is in some European countries. Even at the reduced prescribing rate, she said, enough opioids were ordered in 2015 to keep every American medicated round-the-clock for three weeks.

“‘It looks a little bit better, but you really have to put that in context,’ Schuchat told the Washington Post. ‘We’re still seeing too many people get too much for too long.'”

It is also my experience that rural practitioners will defend their prescribing practices by expressing sympathy for their patients, and explaining that a large percentage are uninsured and there isn’t a pain specialist for miles around. Unfortunately, it is my further experience that these explanations will not get you very far with the Oregon Medical Board. From the Oregon Medical Board’s perspective, there may be a problem, but narcotics are not the long-term solution in most cases. If you possess a state medical license and a federal DEA Registration, the Oregon Medical Board expects you to know this, and to do your part to correct the situation.

Sympathy, combined with skepticism and alternatives

The Oregon Medical Board makes its prescribing guidelines – Oregon Opioid Prescribing Guidelines: Recommendations for the Safe Use of Opioid Medications – available on the rotating banner of its website home page, or click here.

Using sarcasm to make a final point, if you truly want to court trouble with the Drug Enforcement Administration (DEA) or the Oregon Medical Board, treat chronic pain with narcotics in excess of 90 days and 120 MED (morphine equivalent dose) with too much sympathy from a family practice in an under-served rural area with a large percentage of uninsured patients and no pain specialist within miles, which is a recipe for trouble and an invitation for state or federal regulatory inquiry.

I recently wrote about the consequences of stipulating to a temporary restriction on your medical license. One such consequence is a report to the National Practitioner Data Bank (NPDB). A data bank report, like professional discipline on your license, will complicate your professional life. All too often, however, the focus is on avoiding or mitigating professional discipline while the likelihood of a data bank report and its impact is forgotten. Whether you are a physician, pharmacist or nurse, the preferred resolution to a Board investigation is both non-disciplinary and not reportable to the NPDB.

I have written on this topic before. Ten months ago I wrote about mandatory reporting requirements and the dreaded “yes questions.” Nineteen months ago I asked whether license applications or license renewals caused a sinking feeling in the pit of your stomach and wrote about that. Today I am revisiting this topic because it is part of my practice every week. Recently, I helped a new graduate make her first license application and a seasoned professional file his license renewal application. Both had alcohol-related incidents to report and explain. Last week I also helped three nurses and two physicians that were either “caught,” or otherwise had to self-report and explain alcohol or drug activity. It should come as no surprise then that the Oregon State Board of Nursing, the Oregon Board of Pharmacy, and the Oregon Medical Board are all well experienced with substance abuse issues and arrest records. The good news is that whether you are a nursing, pharmacy, or medical student, a recent graduate, or a licensed professional, if you have a substance abuse issue or arrest record, much can often be done to help you obtain or maintain your professional license.

Forward thinking medical students have time to act before applying for licenses

One forward thinking pharmacy student and another forward thinking medical student wanted to determine before starting their educations whether their arrest records involving drugs or alcohol would preclude them from obtaining a pharmacy or medical license upon graduation. The medical student would also need a DEA Registration. One nice thing about helping students at the beginning of their educations is the element of time. I can help a student anticipate what lies ahead, and understand what he or she can do ahead of time to improve the odds of being licensed upon graduation. Much can be done to help students prepare themselves well before it is time to apply for that first license.

Recent medical graduates likely have more to help their license applications than they know

If you are about to graduate as a nurse, pharmacist, or physician, and the thought of applying for your first license causes a sinking feeling in the pit of your stomach, there is reason to be hopeful. It is my experience that whatever drug, alcohol or arrest history is in your past, there will be many positive things to stress in your favor when applying for your first license. You are a new graduate after all, so you have done a number of things right; what are they? The key to this approach, however, is that whatever drug, alcohol or arrest history is truly in your past. If, for example, you have a drug history and you are arrested for a drug violation while your license application is pending, that new drug arrest presents a much more difficult obstacle to overcome.

Help for seasoned physicians, pharmacists, and nurses when renewing

Licensed professionals must report certain drug and alcohol related activity, convictions, and some arrests and often seek help with their license renewals. If you find yourself in this situation you are not alone, and the Oregon State Board of Nursing, the Oregon Board of Pharmacy, and the Oregon Medical Board are all well experienced with drug, alcohol, and arrest records.

Recently, I helped one licensed heath care professional complete his renewal application. He had an alcohol related incident since his last renewal but he had also done everything necessary to take care of his health and return to work. His renewal application made clear that insufficient explanations and/or documentation could delay his renewal. Fortunately, he did the hard work before I became involved and my role was limited to assisting his explanation and assembling the documents I knew his licensing board would expect to see to ensure he is healthy, competent, and safe to return to work. Despite his report of a significant alcohol related incident, his renewal went through without further effort.

Some time ago, I helped an out-of-state nurse obtain her Oregon nurse’s license. Her situation was not uncommon. When she was young, she incurred a relatively minor drug and arrest record about the same time she obtained her first nursing license, so her first nursing license issued with heavy restrictions and those restrictions that were never lifted. When she called upon me to help her apply for her Oregon nurse’s license, she was emotionally beaten by the restrictions that had haunted her practice for a decade. Once we started working together, I was impressed by all that she had accomplished personally and professionally since she was first licensed. Whatever happened a decade ago was old history, no longer relevant in gauging who she is today. All that we needed to do was organize and present her accomplishments in a way that could be understood and verified by the Oregon State Board of Nursing. Her unrestricted nursing license quickly issued, with no interview and no further questions. I was happy for her and impressed by the Oregon State Board of Nursing for processing her nursing license application so expediently.

Defending physicians prescribing narcotics for chronic pain has never been easy and I have long criticized the the Drug enforcement Administration (DEA) for conflating the civil standard of care with the criminal conviction standard, thereby criminalizing the practice of medicine. Sixteen months ago I commented that the DEA unnecessarily extends its investigations to the detriment of physicians and patients (DEA investigations: How much is too much?), and 11 months ago I commented that a new standard of care has emerged for the treatment of chronic pain (The pendulum has swung: Treat chronic pain cautiously). Now Attorney General Jeff Sessions, who heads the DEA, has ordered his federal prosecutors to seek the maximum punishment for federal drug offenses. All tolled, a perfect storm is brewing for physicians prescribing narcotics to treat chronic pain.

With a few exceptions (e.g., cancer pain or hospice care), if you treat chronic pain with narcotics in excess of 90 days and 120 MED (morphine equivalent dose) and your prescribing practices have not evolved over the past five to seven years consistent with the emerging standard of care, you have likely failed to “keep up” and you may be at risk of regulatory intervention. If you treat chronic pain with narcotics in excess of 90 days and 120 MED, and you are not a pain specialist, or you do not refer your patients to a pain specialist, and your patients are not on taper plans, your medical practice may be a ticking time bomb

Prescribing guidelines: The emerging standard of care

The following practice guidelines, offered by the Oregon Medical Board and Oregon Health & Science University (OHSU), reflect current standard of care expectations when prescribing narcotics to treat chronic pain:

If your practice is not in line with these recent guidelines, you may be risking sanctions by your state medical board or the DEA. If your practice comes to the attention of your state medical board, your medical license may be subject to quick restriction or threatened revocation. Similarly, if your practice comes to the attention of the DEA, your DEA Registration may be subject to restriction or revocation and, in a worst case scenario, you may be subject to a criminal investigation. This already serious problem has been exacerbated by a newly invigorated DEA that has been instructed United States Attorney General Jeff Sessions to pursue the maximum punishment available for federal drug law violations.

Physicians beware: marijuana may complicate your professional life

I earlier wrote about marijuana, the practice of medicine, and the Oregon Medical Board, cautioning physicians that regardless of state law, marijuana is still a Schedule I banned substance under federal law, meaning that without a research permit or exception, it cannot be used or prescribed for any purpose under federal law. Consequently, I cautioned physicians not to become complacent when recommending marijuana for medical use and not to confuse compliance with the Oregon Medical Marijuana Program (OMMP) with meeting the applicable standard of care.

Admittedly, under former Justice Department policy, federal law has been lightly enforced and in those states where marijuana is “legal,” a lax attitude prevails among the general public. For those of us that possess professional licenses, however, we are often held to higher standards and this seems to be particularly true for Oregon physicians, whether they are recommending marijuana for medical use, or consuming marijuana recreationally. This point was hammered home earlier this month when I represented two physicians during their Investigative Committee (IC) interviews at the Oregon Medical Board. One physician had recommended marijuana for medical use. Although he had strictly complied with the Oregon Medical Marijuana Program (OMMP), the Medical Board’s concern was the standard of care. The other physician had never recommended marijuana for medical use, but he had admitted to personal use, and not always in a state where it was legal under state law. Both physicians were honest, forthcoming and well-intentioned, but marijuana had complicated their professional lives, something we all want to avoid.

Physicians, the times they are a changing: the new DEA

The times are not getting any easier for physicians recommending or using marijuana. New Attorney General Jeff Sessions, who heads the Drug Enforcement Administration (DEA), has long opposed the legalization of recreational marijuana and yesterday, Sean Spicer, the President’s press secretary, explained during his daily press briefing that under the new administration we can expect “greater enforcement” of federal law banning the recreational use of marijuana even in those states where recreational use is “lawful” under state law. I suspect the Oregon Medical Board was not surprised. During a side conversation earlier this month, a Medical Board investigator commented this might happen under the new administration and, a few weeks later, it did. I think it is safe to assume that in this new era, the Oregon Medical Board will have still greater concerns about the recreational use of marijuana by physicians in any state, including Oregon, where it is “legal.”

To report or not report: Discipline versus a Letter of Appreciation

Reporting troubling information to your licensing Board and navigating the subsequent investigation is seldom one’s first choice, but it can be done well, and it may spare you from discipline later. You might even discover that your licensing Board is your friend and ally. To illustrate this discussion, I am using two cases involving pharmacists and the Oregon Board of Pharmacy, but the same principle can apply to nurses before the Oregon State Board of Nursing and physicians before the Oregon Medical Board.

Two pharmacy cases that make the point

In one case, the pharmacist in charge (PIC) was managing a pharmacy technician whose qualifications to hold her technician’s license were suspect. The PIC did not report the technician, believing the Board of Pharmacy “would not have done anything” to help, since the Board licensed her in the first place. As he would later learn, however, had he made an appropriate report to the Board, he would have satisfied his professional obligation to report, while simultaneously gaining the Board’s participation in the problem, relieving him of much responsibility. A simple report to the Board would have spared him the grief that followed as he sought to manage a problem he could not manage, and should have instead reported. In the end, his failure to report the technician, and to work collaboratively with his licensing Board, proved a costly lesson: discipline.

By way of comparison, in an another case, the PIC discovered an ongoing drug theft that occurred on his watch, a drug theft that perhaps should have been discovered sooner. Nonetheless, his drug inventory reconciliations uncovered the drug loss and, through his extraordinary efforts, he identified the technician responsible for the drug theft. His reports to the Oregon Board of Pharmacy and the Drug Enforcement Administration (DEA) were timely, and his participation with the Board during the investigation was exemplary. In the end, he was not disciplined, but instead received a letter of appreciation from the Oregon Board of Pharmacy.

The moral of the story

The crucial point not to be missed is that these two pharmacists could have reversed their fortunes (good or bad) by simply reversing their decisions to report to the Board (or not to report). I can assure you that the pharmacist that reported to the Board in the second example above (involving the drug theft), and then experienced the benefit of reporting, will do so again, should the need arise. As for the other pharmacist, the one that chose not to report his technician’s lack of qualifications, and faced the consequences, next time, he too will report to the Board.

This is a case I took up on appeal for another lawyer, and won. In this case, the Oregon Medical Board revoked a physician’s medical license by missapplication of complex procedural rules. In a unanimous decision, however, the Oregon Court of Appeals reversed the Oregon Medical Board in my client’s favor. See Yankee v. Oregon Medical Board, 280 Or App 1 (August 3, 2016) (remanding for further proceedings).

Appeals against the Oregon Medical Board are difficult to win

On appeal to the Oregon Court of Appeals, I argued that the Oregon Medical Board erred when it denied my client’s motion to reschedule his hearing, and revoked his medical license, without first holding a hearing on his motion before an Administrative Law Judge (ALJ), as required by administrative rule. The Oregon Court of Appeals agreed, and reversed the Oregon Medical Board, remanding the case for further proceedings.

This appeal was won on procedural grounds and, as experienced appellate lawyers know, this type of appeal can be difficult to win. I argued this case to the Oregon Court of Appeals in February of 2015, but the court did not decide the case until August of 2016, 18 months later, suggesting that the Court of Appeals needed significant time to decide this troubling case.

The Court of Appeals’ ruling: The Oregon Medical Board must follow prescribed procedure

The holding in this case is simple: The Oregon Medical Board must follow “prescribed procedure” when seeking to revoke a physician’s license:

“Having concluded that the [Oregon Medical] board procedurally erred when it did not provide [Dr. Yankee] with a hearing before the ALJ, we must remand this matter for further proceedings if “the fairness of the proceedings or the correctness of the action may have been impaired” by that “failure to follow prescribed procedure.” ORS 183.482(7). Here, the fairness of the proceedings may have been impaired. [Dr. Yankee] was entitled to have a hearing before a neutral ALJ [Administrative Law Judge] on the reasons for his not appearing once the [Oregon Medical] board disputed the facts articulated by [Dr. Yankee]. Instead, the [Oregon Medical] board resolved those disputed factual issues in its own favor. Accordingly, we reverse and remand for further proceedings.”

I recently discussed a few of the many mandatory reporting obligations imposed on physicians and nurses. Today I want to discuss the “dreaded yes questions.”

A dreaded yes question is a question you want to answer “no,” but truthfulness requires that you answer “yes,” hence the question is dreaded.

For example, last week, a physician asked me how to answer a boilerplate question found on many residency applications, and a nurse asked me to help her report a drug and alcohol-related arrest on her renewal application. The question on the residency application asks, “Is there anything in your past history that would limit your ability to be licensed or would limit your ability to receive hospital privileges?” To answer this question, one would need to know what kind of things limit the ability to be licensed, or to gain hospital privileges. Without relevant experience, this question will be difficult to answer. The renewal question for the nurse, involving drug and alcohol-related arrest and her renewal application, was much more straight forward.

License renewal applications and DUII arrests and convictions

I am often asked about the need to report driving under the influence of intoxicants (drunk driving or DUII) arrests and convictions, and less often about the need to report a drunk driving arrest that did not result in a conviction. One recent case illustrates the complexity of the various mandatory reporting requirements. I represented a physician who had been arrested, but was not convicted, for driving under the influence of intoxicants. The physician was licensed in three states. The phrasing of the question on the renewal applications was all important, and it differed state-by-state. One state required a conviction to be reported, but not a mere arrest. Another state required that the arrest be reported, regardless of whether there had been a conviction. The third state was a close-call case.

What to do with close-call questions on license renewal applications

Occasionally, the facts and circumstances, combined with the phrasing of the question on the renewal application, will make the answer too close to call with desired certainty. Is these cases, an experienced healthcare defense attorney can advise you on the risks of not reporting, versus the benefits of reporting to ensure compliance with your mandatory reporting requirements. An experienced healthcare defense attorney can also do something you should not, and that is to make a call to the right person at your licensing Board, in an effort to learn more, but without disclosing your name.

One final caveat about the failure to report

In my experience, those choosing not to report a reportable incident deeply regret that decision once the incident comes to the attention of their licensing Board. The failure to report simply adds another layer to the investigation and exposes you to additional scrutiny because your veracity is now in question.